Services

The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for: planned maintenance carried out during the maintenance window of 10.00 pm to 6.00 am Irish time; and unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 12 Normal Business Hours’ notice in advance.

The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.

Data protection

For the purposes of this clause 4, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the GDPR.

Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.

The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of this Agreement.

The parties agree that the Customer is the controller and the Supplier is the processor of the Customer Personal Data.

In relation to the Customer Personal Data, Schedule 3 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

Without prejudice to clause 4.2, the Supplier shall, in relation to Customer Personal Data:

process that Customer Personal Data only on the documented instructions of the Customer, which shall be to process the Customer Personal Data for the purposes set out in 3 (Processing, personal data and data subjects) unless the Supplier is required by Applicable Law to otherwise process that Customer Personal Data. Where the Supplier is relying on Applicable Law as the basis for processing Customer Personal Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Law unless the Applicable Law prohibits the Supplier from so notifying the Customer on important grounds of public interest. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;

implement the technical and organisational measures set out in Schedule 3 (Processing, personal data and data subjects) to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 4.6.6, Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and

maintain records in accordance with Applicable Law, and industry best practice from time to time, to demonstrate its compliance with this clause 4, and allow for reasonable audits by the Customer or the Customer’s designated auditor, for this purpose, on reasonable written notice.

The Customer provides its prior, general authorisation for the Supplier to:

appoint processors to process the Customer Personal Data, provided that the Supplier:

1. 1. 1. 1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 4;
         2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
         3. shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.

transfer Customer Personal Data outside of the European Union as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time.

Indemnity

The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:

the Customer is given prompt notice of any such claim;

the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

the Customer is given sole authority to defend or settle the claim.

The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this Agreement infringes any Irish patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts to the extent awarded against the Customer in judgment or settlement of such claims, provided that:

the Supplier is given prompt notice of any such claim;

the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

the Supplier is given sole authority to defend or settle the claim.

In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

a modification of the Services or Documentation by anyone other than the Supplier; or

the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or

the Customer’s breach of this Agreement.

The foregoing  and clause 12.3.2 states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

Limitation of liability

Except as expressly and specifically provided in this Agreement:

the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;

all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this Agreement; and

the Services and the Documentation are provided to the Customer on an “as is” basis.

Nothing in this Agreement excludes the liability of the Supplier:

for death or personal injury caused by the Supplier’s negligence; or

for fraud or fraudulent misrepresentation.

:

the Supplier shall have no liability for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses; and

the Supplier’s total aggregate liability to the Customer (including in respect of the indemnity at clause 11.2), in respect of all breaches of duty occurring shall not exceed the total Subscription Fees paid or payable by the Customer under this Agreement in the twelve (12) month period preceding the date on which the event giving rise to the liability occurred.

References to liability in this clause 12 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.

Governing law

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of Ireland.